SB-0853, As Passed Senate, March 27, 2014
March 6, 2014, Introduced by Senators JONES, HUNE, MARLEAU, SCHUITMAKER, BIEDA, ROBERTSON, HOPGOOD, JANSEN, HILDENBRAND, ANANICH, SMITH, BOOHER, EMMONS, KOWALL, GREEN, WARREN, ROCCA, MEEKHOF, YOUNG, MOOLENAAR, HANSEN, JOHNSON, BRANDENBURG and PAPPAGEORGE and referred to the Committee on Health Policy.
A bill to amend 1978 PA 368, entitled
"Public health code,"
(MCL 333.1101 to 333.25211) by adding part 55A.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
PART 55A
EYE CARE CONSUMER PROTECTION
Sec. 5551. (1) This part may be referred to as the "eye care
consumer protection law".
(2) As used in this part, the words and phrases defined in
sections 5553 to 5557 have the meanings ascribed to them in those
sections.
(3) In addition, article 1 contains general definitions and
principles of construction applicable to all articles in this code.
Sec. 5553. (1) "Contact lens" means a lens placed directly on
the surface of the eye, regardless of whether it is intended to
correct a visual defect. Contact lens includes, but is not limited
to, a cosmetic, therapeutic, or corrective lens.
(2) "Department" means the department of licensing and
regulatory affairs.
(3) "Diagnostic contact lens" means a contact lens used to
determine a proper contact lens fit.
(4) "Director" means the director of the department.
(5) "Examination and evaluation", for the purpose of writing a
valid prescription, means an assessment of the ocular health and
visual status of a patient that does not consist solely of
objective refractive data or information generated by an automated
refracting device or other automated testing device.
Sec. 5555. (1) "Licensee" means any of the following:
(a) A physician who is licensed or otherwise authorized to
engage in the practice of medicine under part 170 and who
specializes in eye care.
(b) A physician who is licensed or otherwise authorized to
engage in the practice of osteopathic medicine and surgery under
part 175 and who specializes in eye care.
(c) An optometrist who is licensed or otherwise authorized to
engage in the practice of optometry under part 174.
(2) "Spectacles" means an optical instrument or device worn or
used by an individual that has 1 or more lenses designed to correct
or enhance vision to address the visual needs of the individual
wearer and commonly known as glasses, including spectacles that may
be adjusted by the wearer to achieve different types or levels of
visual correction or enhancement.
Sec. 5557. "Valid prescription" means 1 of the following, as
applicable:
(a) For a contact lens, a written or electronic order by a
licensee who has conducted an examination and evaluation of a
patient and has determined a satisfactory fit for the contact lens
based on an analysis of the physiological compatibility of the lens
on the cornea and the physical fit and refractive functionality of
the lens on the patient's eye. To be a valid prescription under
this subdivision, it must include at least all of the following
information:
(i) A statement that the prescription is for a contact lens.
(ii) The contact lens type or brand name, or for a private
label contact lens, the name of the manufacturer, trade name of the
private label brand, and, if applicable, trade name of the
equivalent or similar brand.
(iii) All specifications necessary to order and fabricate the
contact lens, including power, material, base curve or appropriate
designation, and diameter, if applicable.
(iv) The quantity of contact lenses to be dispensed.
(v) The number of refills.
(vi) Specific wearing instructions and contact lens disposal
parameters, if any.
(vii) The patient's name.
(viii) The date of the examination and evaluation.
(ix) The date the prescription is originated.
(x) The prescribing licensee's name, address, and telephone
number.
(xi) The prescribing licensee's written or electronic
signature, or other form of authentication.
(xii) An expiration date of not less than 1 year from the date
of the examination and evaluation or a statement of the reasons why
a shorter time is appropriate based on the medical needs of the
patient.
(b) For spectacles, a written or electronic order by a
licensee who has examined and evaluated a patient. To be a valid
prescription under this subdivision, it must include at least all
of the following information:
(i) A statement that the prescription is for spectacles.
(ii) As applicable and as specified for each eye, the lens
power including the spherical power, cylindrical power including
axis, prism, and power of the multifocal addition.
(iii) Any special requirements, the omission of which would, in
the opinion of the prescribing licensee, adversely affect the
vision or ocular health of the patient. As used in this
subparagraph, "special requirements" includes, but is not limited
to, type of lens design, lens material, tint, or lens treatments.
(iv) The patient's name.
(v) The date of the examination and evaluation.
(vi) The date the prescription is originated.
(vii) The prescribing licensee's name, address, and telephone
number.
(viii) The prescribing licensee's written or electronic
signature, or other form of authentication.
(ix) An expiration date of not less than 1 year from the date
of the examination and evaluation or a statement of the reasons why
a shorter time is appropriate based on the medical needs of the
patient.
Sec. 5559. (1) Except as otherwise provided in subsection (2),
spectacles and contact lenses are medical devices and are subject
to the requirements of this part for the protection of consumers.
(2) This part does not apply to any of the following:
(a) A diagnostic contact lens that is used by a licensee
during an examination and evaluation.
(b) An optical instrument or device that is not intended to
correct or enhance vision.
(c) An optical instrument or device that is sold without
consideration of the visual status of the individual who will use
the optical instrument or device.
Sec. 5561. A person shall not do any of the following:
(a) Employ objective or subjective physical means to determine
the accommodative or refractive condition or range of power of
vision or muscular equilibrium of the human eye or prescribe
spectacles or contact lenses based on that determination unless
that activity is performed by a licensee.
(b) Dispense, give, or sell spectacles or contact lenses
unless dispensed, given, or sold pursuant to a valid prescription.
(c) Use an automated refractor or other automated testing
device to generate objective refractive data unless that use is
under the supervision of a licensee. As used in this subdivision,
"supervision" means that term as defined in section 16109.
Sec. 5563. (1) Except as otherwise provided in this part, the
administration and enforcement of this part is the responsibility
of the department.
(2) The department may promulgate rules under the
administrative procedures act of 1969 that it determines necessary
to implement, administer, and enforce this part.
Sec. 5565. (1) A person or governmental entity that believes
that a violation of this part or a rule promulgated under this part
has occurred or has been attempted may make an allegation of that
fact to the department in writing.
(2) If, upon reviewing an allegation under subsection (1), the
department determines there is a reasonable basis to believe the
existence of a violation or attempted violation of this part or a
rule promulgated under this part, the department shall investigate.
(3) The department may hold hearings, administer oaths, and
order testimony to be taken at a hearing or by deposition conducted
pursuant to the administrative procedures act of 1969 and shall
report its findings to the director.
(4) The director may proceed under section 5567 if he or she
determines that a violation of this part or a rule promulgated
under this part has occurred.
(5) This section does not require the department to wait until
harm to human health has occurred to initiate an investigation
under this section.
Sec. 5567. (1) The director, upon finding after notice and an
opportunity for a hearing that a person has violated or attempted
to violate this part or a rule promulgated under this part, may
impose an administrative fine of not more than $1,000.00 for each
violation or attempted violation. If the director finds that a
violation or attempted violation did not result in significant harm
to human health, the director may issue a warning instead of
imposing an administrative fine.
(2) The director shall advise the attorney general of the
failure of a person to pay an administrative fine imposed under
this section. The attorney general may bring an action in a court
of competent jurisdiction for the failure to pay an administrative
fine imposed under this section.
(3) At the request of the director, the attorney general may
file a civil action seeking an injunction or other appropriate
relief in the name of the people of this state to enforce this part
and the rules promulgated under this part. The court may impose on
a person who violates or attempts to violate this part or a rule
promulgated under this part a civil fine of not more than $5,000.00
for each violation or attempted violation and may order additional
equitable or injunctive relief to ensure compliance with this part.
In addition, the attorney general may bring an action in circuit
court to recover the reasonable costs of the investigation from a
person who violated or attempted to violate this part or a rule
promulgated under this part.